While it's illegal to be driving DUI in San Diego California and it may be illegal to operate a boat or a personal watercraft while you are under the influence of alcohol or other drugs, but you won't lose your driver's license over it, attorneys qualify.

The California Department of Motor Vehicles (DMV) has agreed to pay $5.6 million to 753 vessel operators for suspending their vehicle driver's licenses because they were convicted of boating under the influence (BUI.

A Los Angeles court ruled in 2007 that the DMV did not have legal authority to suspend the licenses of those convicted of BUIs. The DMV stopped the practice in 2008, but not before a class action lawsuit was brought against the DMV "to vindicate the rights of California motorists."

Although you won't lose your driver's license, a California BUI can still have serious consequences. BUI convictions can be placed on your driving record, and used to enhance a DUI sentence if you are convicted of a motor vehicle DUI. In San Diego, lawyers will tell you that you are also subject to the same penalties as a DUI, such as jail time and hefty fines and fees.

In San Diego, many people who get DUI convictions do not do what they are supposed to do. Attorneys provide the paperwork showing program, MADD, jail, public service but sometimes people don't do everything ordered in a timely manner. Click on this lawyer site if you need to know what to do if you have a DUI warrant out for your arrest.

Every single day, B-2 of the San Diego Union-Tribune Newspaper lists a baker's dozen of crime victims. It is a rare exception that such crimes are not committed by veteran criminals.

San Diego County Sheriff William Gore says, as of November 11, 2011, there were 66,730 arrest warrants outstanding here.

The Department was quick to add the perspective that even that huge number of warrants is less than the same date of the year before when the number was 71,340. So some progress is being made.

The system reports that 43% percent or 28,433 are "bench warrants." Those are orders issued by judges when a defendant simply fails to appear in court as ordered, or fails to comply with some term or condition of probation.

Over 17,000 of the warrants were for felonies. Felonies can be dangerous as in murder, robbery, rape, burglary and battery. Or they can be drug violations of the Health and Safety Code, not likely to affect us directly.

But still, 17,000 felons running loose in our county is frightening.

Nearly an equal number of misdemeanor warrants are outstanding. We can take no comfort in misdemeanors being "lesser crimes" than felonies.

The most common misdemeanors are DUI / drunk driving and domestic violence enormously serious problems in themselves.

San Diego has long been a leader in the effort to improve warrant service.

Long-time readers will remember my crusade as a judge when our warrant balance in this county was an astounding 600,000 and would have been even higher except the courts simply "discharged from accountability" any warrant that was over 5 years old.

We reduced that outrageous balance by recalling the 500,000 that had been foolishly issued for failure to appear on minor traffic matters and turned those over to a collection agency. The county and other local jurisdictions have made millions annually on that decision.

That meant the balance of the warrants were important to the public safety.

The service of warrants in this county, state, and nation remains problematic for several reasons. The law in regards to warrants is vague. Police may serve warrants but are not required to. No agency is statutorily responsible for serving warrants. Judges issue them and then stare at the ceiling hoping that something happens.

As the Sheriff points out, between 4,000 and 5,000 new arrest warrants are issued by the courts each month. Under the weakness in the current law, no police department feels compelled to view warrants with the importance they deserve.

Nor do any public officials seem to care.

The author in the above article is not aware of any letters from the District Attorney, the Presiding Judge, the City Attorney, the Attorney General, or even the Governor urging law enforcement to step up warrant activity or proposing other solutions to the problem of millions of unserved warrants statewide.

If Bonnie Dumanis has written one, I invite her to publish a copy in the Transcript.

I don't know any city council that asks for a monthly report on how their police department is doing keeping warrants in their jurisdiction cleaned up.

I am not aware of any awards for police officers for being the officer who served the most warrants. There are no similar incentives for retention or promotion.

Except for the Sheriff's Court Services Field deputies, there are no officers who consider it a prime element of their job to serve warrants.

There are, from time to time "warrant sweeps' but those efforts are above and beyond the typical duty of a patrol officer and are the exception, not the rule.

Instead patrol officers are encouraged to "preventively patrol' or carry out "community-oriented policing." One is to try to prevent crime by a show of police presence, dubious at best. And the other is community hand holding which is useless.

The best way to fight crime is to arrest criminals. The best way to arrest criminals is to serve warrants and enforce traffic laws with an eye to serving warrants.

Nor is there adequate effort by the state. When fugitives leave the jurisdiction in which they are wanted, they are essentially home free. Other agencies are not aware of warrants from outside their jurisdictions. And even if they were, how are the fugitives to be transported home?

Except for notorious criminals, out of county or state means out of mind.

Both the state and the Federal governments should have warrant enforcement teams and transport systems to facilitate local fugitive apprehension instead of letting one agency dump their trash on others.

There is much to be done to improve warrant enforcement.

Canada's new crime crusade is against DUI or drunk driving, thanks to MADD and breath test estimating gadgets, lawyers believe.

MADD shows again why it's considered probably the most influential interest group in the country as ideological neo-prohibitionists.

In crazed movements, extremists and fanatics often lead the way.

The breath test estimator gave police a relatively non-invasive test purportedly providing results to determine one's BAC.

A BAC or blood-alcohol content of .10% means that 0.10 (one 10th of one per cent) of a person's blood, by volume, is alcohol. In both the US and Canada, the legal limit is 0.08.

Contrary to what MADD suggests, though, this is not the equivalent of fingerprints or DNA. It is controvertible evidence as there are many scientific, physiological and other test issues not always mentioned by MADD

MADD was founded in 1980 in California by Candice Lighter after her 13-year-old daughter was killed by a drunk driver.

In Canada, local activities are carried out by MADD chapters in approximately 100 communities across the country.

MADD has now become neo-prohibitionist. This refers to the belief that the influence of alcohol should be reduced through laws and policies that further restrict the sale and possession of alcohol to reduce consumption.

In other words, they have become the modern version of an old Protestant-based organization, the Woman's Christian Temperance Union. Founded in Cleveland in 1874, the purpose of the Woman's Christian Temperance Union was to create a "sober and pure world" by abstinence, purity and evangelical Christianity. The group was instrumental in bringing about prohibition in the United States in 1919.

The law resulted in the criminalization of producers, suppliers, transporters and consumers of alcohol and allowed gangsters like Al Capone to flourish. It was repealed in 1933.

In 1885, Letitia Youmans founded the Canadian arm of the organization. In 1898, a federal referendum on prohibition was held, receiving 51.3 per cent for and 48.7 per cent against prohibition.

Prime Minister Wilfrid Laurier chose not to move forward. As a result, Canadian prohibition was instead enacted through laws passed by individual provinces during the first 20 years of the 20th century. However, between 1920 and 1925, five provinces voted to repeal prohibition - though Prince Edward Is-land stayed dry until 1948.

But we now have a wave of neo-prohibitionism. While the Criminal Code sets the legal limit of alcohol in the blood at .08, most provinces have created a le-gal grey area, where drivers with a blood-alcohol level above .05 can be fined or lose their licence.

In Ontario, for example, drivers with a level between .05 and .08 face a three-day roadside suspension the first time they're caught, which increases to one month for people who break the rules a third time. Alberta has recently passed a similar bill.

Such laws, which allow police to make roadside DUI stops and test people at random - even those who do not appear drunk - will make it almost impossible to have more than a glass of wine at a party or restaurant. If you do not carry breath-alyzers around with you, why risk losing your license?

In light of the prism of previous crusades. McCarthyism, like MADD, identified a real evil, in the one case, communism, in the other, excessive use of alcohol. But both eventually went too far.

It was one thing during the Cold War to expose a Soviet agent or spy, another to fire from a job some movie actor or teacher who had long ago belonged to a communist front group. There were no degrees of culpability. Informing on people was encouraged. And many a target com-mitted suicide or ended up working as a janitor or clerk for the rest of his or her life.

Today, Canada & the US attempt no longer distinguish between a reckless drunk barrelling down a major thoroughfare at two o'clock in the morning and crashing into a tree, and someone who had slightly more to drink in a restaurant than is legal, and backed into a parked car in a shopping lot at 6: 30 in the evening.

Both are stand to lose their jobs. Both may go to jail. MADD has fuzzied the line.

The anti-DUI scene in San Diego goes to a new level with an'anti-pub crawl' or 'bar-stopping' held by San Diego residents in North Park will gather on Friday evening to walk in protest to the number of alcohol licenses issued to businesses in their community.

This is the 1st of 2 rallies, the other will take place in Pacific Beach aka Party City the following week.

North Park and Pacific Beach folks banded together in 2011 to draw attention to what they say is Alcohol and Beverage Control's (ABC) unbridled policy in issuing alcohol permits, especially to the business districts they say are already saturated with bars and restaurants.

"[Alcohol and Beverage Control's] licensing policy is harming communities. San Diego is the DUI capital of the USA with highest DUI rate in the nation 2 years in a row," reads the flier announcing the walk, which will begin at 5:30pm outside of Birch North park Theater on University Avenue.

One week later, the residents plan to move their protest to Pacific Beach for a walk along Garnet Avenue's bustling entertainment district.

"[Pacific Beach] consistently has the highest rate of violent crime and [North Park] falls just barely behind. [Pacific Beach] has the highest rate of alcohol-related crime and general crime and is top or near the top in nearly all crime categories. This crime is centered around the business district where more and more restaurants are functioning like bars and more and more alcohol licenses are being issued, modified or expanded each year, San Diego drunk driving criminal defense attorneys are reminded.

In addition to what they feel is a permit-happy Alcohol and Beverage Control board, the group also lays blame on SDPD's Vice unit, as well as city councilmembers Todd Gloria and Kevin Faulconer, who represent both North Park and Pacific Beach, San Diego DUI lawyers learned.

"The Alcohol Beverage Control, SDPD vice, and city officials are part of the problem. The police work for the mayor and the mayor and city councilmen are ignoring the problem... and have become part of the problem themselves by endorsing new alcohol licenses, expansions of bar-like restaurants, and modifications to allow serving more alcohol, harder alcohol (not just beer and wine), and for longer hours."

San Diego DUI criminal defense attorneys' clients mostly drink beer (or wine). Well, beer is good for you. And it may help your sex life.

Wine drinkers revel in news red wine protects against heart disease.

Beer can also be good for what ails you, from reducing risk for broken bones to helping warding off diabetes and mental decline. It can even increase longevity, says the new Yahoo article.

The key to tapping into beer’s benefits is moderation, meaning just one 12-ounce beer per day for women and two for men.

Heavy drinking ups the threat of liver damage, some cancers, and heart problems. Beer can also make you fat, since a 12-ounce regular beer has about 150 calories, while light beer has about 100.

Read about common diet myths that are dangerous to your health

Top 10 Healthy things about Beer

1. Stronger Bones

Beer contains high levels of silicon, which is linked to bone health. In a 2009 study at Tufts University and other centers, older men and women who swigged one or two drinks daily had higher bone density, with the greatest benefits found in those who favored beer or wine. However, downing more than two drinks was linked to increased risk for fractures.

For the best bone-building benefits, reach for pale ale, since a 2010 study of 100 types of beer from around the word identified these brews as richest in silicon, while light lagers and non-alcoholic beers contained the least.

2. A Stronger Heart

A 2011 analysis of 16 earlier studies involving more than 200,000 people, conducted by researchers at Italy’s Fondazion di Ricerca e Cura, found a 31 percent reduced risk of heart disease in those who quaffed about a pint of beer daily, while risk surged in those who guzzled higher amounts of alcohol, whether beer, wine, or spirits.

More than 100 studies also show that moderate drinking trims risk of heart attacks and dying from cardiovascular disease by 25 to 40 percent, Harvard reports. A beer or two a day can help raise levels of HDL, the “good” cholesterol that helps keep arteries from getting clogged.

3. Healthier Kidneys

A study in Finland singled out beer among other alcoholic drinks, finding that each bottle of beer men drank daily lowered their risk of developing kidney stones by 40 percent. One theory is that beer’s high water content helped keep kidneys working, since dehydration increases kidney stone risk.

It’s also possible that the hops in beer help curb leeching of calcium from bones; that “lost” calcium also could end up in the kidneys as stones.

4. Boosting Brain Health

A beer a day may help keep Alzheimer’s disease and other dementia at bay, researchers say.

A 2005 study tracking the health of 11,000 older women showed that moderate drinkers (those who consumed about one drink a day) lowered their risk of mental decline by as much as 20 percent, compared to non-drinkers. In addition, older women who downed a drink a day scored as about 18 months “younger,” on average, on tests of mental skills than the non-drinkers.

5. Reduced Cancer Risk

A Portuguese study found that marinating steak in beer eliminates almost 70 percent of the carcinogens, called heterocyclic amines (HCAs) produced when the meat is pan-fried. Researchers theorize that beer’s sugars help block HCAs from forming.

Scientists also have found that beer and wine contain about the same levels of antioxidants, but the antioxidants are different because the flavonoids found in hops and grapes are different.

6. Boosting Vitamin Levels

A Dutch study, performed at the TNO Nutrition and Food Research Institute, found that beer-drinking participants had 30 percent higher levels of vitamin B6 levels in their blood than their non-drinking counterparts, and twice as much as wine drinkers. Beer also contains vitamin B12 and folic acid.

7. Guarding Against Stroke

Researchers at the Harvard School of Public Health found that moderate amounts of alcohol, including beer, help prevent blood clots that block blood flow to the heart, neck and brain—the clots that cause ischemic stroke, the most common type

8. Reduced Risk for Diabetes

Drink up: A 2011 Harvard study of about 38,000 middle-aged men found that when those who only drank occasionally raised their alcohol intake to one to two beers or other drinks daily, their risk of developing type 2 diabetes dropped by 25 percent. The researchers found no benefit to quaffing more than two drinks. The researchers found that alcohol increases insulin sensitivity, thus helping protect against diabetes.

9. Lower Blood Pressure

Wine is fine for your heart, but beer may be even better: A Harvard study of 70,000 women ages 25 to 40 found that moderate beer drinkers were less likely to develop high blood pressure—a major risk factor for heart attack—than women who sipped wine or spirits.

10. Longer Life

In a 2005 review of 50 studies, the U.S. Department of Agriculture (USDA) reported that moderate drinkers live longer. The USDA also estimates that moderate drinking prevents about 26,000 deaths a year, due to lower rates of heart disease, stroke, and diabetes.

These benefits appear to apply in other countries as well, with an earlier study reporting that, “if European beer drinkers stopped imbibing, there would be a decrease in life expectancy of two years—and much unhappiness.”


Don't get a DUI or you'll need a good San Diego California DUI lawyer. Then it becomes less of a matter of health and more of a matter of welfare.

News Release

January 15, 2012

DUC - Driving under influence of cold & DUF - Driving under influence of flu, may be as dangerous as DUI or drunk driving, per UK study, San Diego criminal defense attorneys are told.

United Kingdom drivers are being warned that they could be less capable of driving than they think when they are under the influence of a heavy cold or flu. According to a recent study there was evidence that revealed a driver is impaired during a bad cold or flu as much as if they were heavily drinking prior to getting behind the wheel. Drivers were found to be impaired by over 50 per cent or the equivalent of drinking more than four double whiskies. The driver’s ability to react is impaired and they are less aware of other drivers on the road. They also are in danger of massive distraction should they have a sneezing or coughing fit while driving.

Mark Dolphin, a winter driving expert said, “You shouldn’t drive if you are not feeling well. If you really must go out, get someone else to take you.”

The study warning UK drivers was carried out by Cardiff University’s Common Cold Unit. Many drivers are totally unaware of their inability to properly handle themselves while behind the wheel if they are suffering from a major cold or flu. They should however realize that there can be even more of an impairment should the driver be taking certain kinds of cold medication. Many cold medications do in fact declare that the driver should be cautious when driving or avoid driving altogether, however most drivers do not consider the severity of the warning.

Drivers should avoid endangering themselves as well as others on the road by staying off the road during a bad cold or flu. UK drivers should take the warning to heart and stay safe while they recover, San Diego DUI lawyers are told.

Sons of Movie Stars are not immune to the San Diego DUI court system. Local lawyers are told today a 100,000 bench warrant was issued for star O'Neal's son's arrest.

Griffin O’Neal’s California criminal defense attorney Heather Boxeth maintains he relapsed by drinking alcohol after 5 years of sobriety, contending going to rehab was a responsible thing to do.

Arising out of the San Diego county DUI accident, O'Neal picked up 6 felony and misdemeanor charges: DUI causing injury, possession of a firearm by felon and possession of a controlled substance. Four years in prison is the possible sentence.

O'Neal was on probation for a 2007 DUI conviction when the accident occurred last Aug. 2 about 1 p.m. near San Diego Safari Park.

Toxicology tests allegedly show he had amphetamines, cocaine, marijuana and Xanax in his system at the time of the drunk driving collision.

If a person had her or his license suspended after a San Diego DUI, a traffic officer may not lawfully stop and legally arrest you for driving on a suspended license [California Vehicle Code section 14601 et. seq.] based on cops checking one's license plate e.g. of students going to a DUI course, folks going to a MADD meeting, or anyone moving down the road.

Click on the above Title for the link to this important San Diego DUI attorney article with the language of pertinent Vehicle Code sections 14607.6(b) and 12801.5(e).

State of Nevada v. Eighth Judicial District Court, et. al., --- P.3d ----, 2011 WL 6840685 (Nev.), 127 Nev. Adv. Op. 84 just held that the probative value of retrograde extrapolation that was based on single sample of blood taken more than two hours after a collision was substantially outweighed by the danger of unfair prejudice, and thus precluded its admission at trial.

According to the indictment, the defendant (Armstrong) was driving when his vehicle collided with another vehicle, causing substantial bodily harm to the other driver. The collision occurred at approximately 1:30 in the morning. A single blood sample was taken from Armstrong at 3:51 a.m., more than two hours after the collision. That blood sample had an alcohol level of .18. Armstrong filed a pretrial motion to exclude the blood alcohol test result. He argued that his blood was drawn outside the statutory two-hour window provided in NRS 484C.430(1)(c) FN1 and that the test was inadmissible because only one blood sample was obtained. He further argued that the retrograde extrapolation that the State would have to use to determine his blood alcohol level at the time he was driving was unreliable and therefore irrelevant and unfairly prejudicial. The State opposed the motion, arguing that retrograde extrapolation was not required to determine Armstrong's blood alcohol level at the time of the collision because his alcohol level was sufficiently high that a jury could determine that it was above .08 while he was driving, but even if the State were required to do so, any variables in the retrograde extrapolation go to the weight of that evidence rather than its admissibility. The State also argued that the blood alcohol test was admissible to show that Armstrong was driving under the influence of intoxicating liquor. After a lengthy evidentiary hearing involving the conflicting testimony of two expert witnesses, the district court granted Armstrong's motion in part. The district court excluded retrograde extrapolation as a means of determining Armstrong's blood alcohol level at the time he was driving and the numerical result of the blood alcohol test but allowed the State to present more generalized evidence that the blood test showed the presence of alcohol.



"The evidence at issue in this case involves retrograde extrapolation. Retrograde extrapolation is a “mathematical calculation used to estimate a person's blood alcohol level at a particular point in time by working backward from the time the blood [sample] was taken.” Com. v. Senior, 433 Mass. 453, 744 N.E.2d 614, 619 (Mass.2001). The calculation requires information regarding the rates at which alcohol is absorbed and excreted. Those rates can vary based on a number of factors, including: the amount of time between a person's last drink and the blood test, the amount and type of alcohol consumed, the time period over which alcohol was consumed, and personal characteristics such as age, weight, alcohol tolerance, and food intake. See Mata v. State, 46 S.W.3d 902, 915–16 (Tex.Crim.App.2001), overruled on other grounds by Bagheri v. State, 87 S.W.3d 657, 660–61 (Tex.App.2002)."



The State then filed a petition for a writ of mandamus against the judge, seeking to force the judge to admit the retrograde evidence. On appeal, the Supreme Court of Nevada affirmed, finding that even though retrograde extrapolation evidence was relevant, there was a danger of unfair prejudice.



"Some jurisdictions have determined that the admissibility of retrograde extrapolation depends on whether enough factors affecting the calculation are known and have expressed concerns with calculations that rely solely on average rates of absorption and excretion. For example, in Mata v. State, the Texas Court of Criminal Appeals provided some guidance by explaining three factors courts should use in evaluating the reliability of retrograde extrapolation:



(a) the length of time between the offense and the test(s) administered; (b) the number of tests given and the length of time between each test; and (c) whether, and if so, to what extent, any individual characteristics of the defendant were known to the expert in providing his extrapolation. These characteristics and behaviors might include, but are not limited to, the person's weight and gender, the person's typical drinking pattern and tolerance for alcohol, how much the person had to drink on the day or night in question, what the person drank, the duration of the drinking spree, the time of the last drink, and how much and what the person had to eat either before, during, or after the drinking.


46 S.W.3d 902, 916 (Tex.Crim.App.2001), overruled on other grounds by Bagheri v. State, 87 S.W.Sd 657, 660–61 (Tex.App.2002). The court declined to design an “exact blueprint” for all cases and recognized that not every personal fact about the defendant must be known to construct a reliable extrapolation—otherwise “no valid extrapolation could ever occur without the defendant's cooperation, since a number of facts known only to the defendant are essential to the process.” Id. at 916–17. The court also indicated that the significance of those personal factors is influenced by the number of blood alcohol samples obtained and the time between multiple samples:

If the State had more than one test, each test a reasonable length of time apart, and the first test were conducted within a reasonable time from the time of the offense, then an expert could potentially create a reliable estimate of the defendant's [blood alcohol content] with limited knowledge of personal characteristics and behaviors. In contrast, a single test conducted some time after the offense could result in a reliable extrapolation only if the expert had knowledge of many personal characteristics and behaviors of the defendant. Somewhere in the middle might fall a case in which there was a single test a reasonable length of time from the driving, and two or three personal characteristics of the defendant were known to the expert. We cannot and should not determine today the exact blueprint for reliability in every case. Suffice it to say that the factors must be balanced.


Id.; see also Burns v. State, 298 S.W.3d 697, 702 (Tex.App.2009) (concluding that expert's testimony was unreliable due to expert's admission that “he knew none of the factors required by Mata when only a single test is available” and because testimony was unreliable, it was irrelevant and “its probative value was greatly outweighed by its prejudicial effect”); accord Com. v. Petrovich, 538 Pa. 369, 648 A.2d 771, 773 (Pa.1994) (upholding trial court's conclusion that retrograde extrapolation expert's testimony was incomplete and elicited “an expert opinion which is necessarily based upon average dissipation rates, average absorption rates, and the alcohol content of the average drink” (internal quotations omitted)). See generally Kimberly S. Keller, Sobering Up Daubert: Recent Issues Arising in Alcohol–Related Expert Testimony, 46 S. Tex. L.Rev. 111, 122–29 (2004) (discussing concern in scientific community over the use of retrograde extrapolation calculations that do not employ factors that affect individual absorption and elimination rates, including (1) the type and amount of food in the stomach, (2) gender, (3) weight, (4) age, (5) mental state, (6) drinking pattern at the relevant time, (7) type and amount of beverage consumed, and (8) elapsed time between the first and last drink taken).

The Court wrote:



"We agree that achieving a reliable retrograde extrapolation calculation requires consideration of a variety of factors. The following factors are relevant to achieving a sufficiently reliable retrograde extrapolation calculation: (1) gender, (2) weight, (3) age, (4) height, (5) mental state, (6) the type and amount of food in the stomach, (7) type and amount of alcohol consumed, (8) when the last alcoholic drink was consumed, (9) drinking pattern at the relevant time, (10) elapsed time between the first and last drink consumed, (11) time elapsed between the last drink consumed and the blood draw, (12) the number of samples taken, (13) the length of time between the offense and the blood draws, (14) the average alcohol absorption rate, and (15) the average elimination rate. We observe, as the Mata court did, that not every personal fact about the defendant must be known to construct a reliable extrapolation, 46 S.W.3d at 916–17, but rather those factors must be balanced."



"[T]he State and Armstrong presented experts who calculated Armstrong's estimated blood alcohol level based primarily on factors attributed to the “average” person and various hypothetical situations. The factors used in those calculations included: Armstrong's admission to the investigating officer at the scene that he drank two beers between 5 p.m. and 10 p .m., records indicating that Armstrong weighed 212 pounds, the time of the accident, the time of the blood draw, and the blood alcohol level in the single sample (.18). There was no evidence presented concerning Armstrong's age or height, the type and amount of food in his stomach, if any, his regular drinking pattern, or his emotional state after the collision.



Concluding, the Court stated:



"Although several of the factors identified above were known, other significant factors were not and, significantly, only one blood draw was obtained. As the Mata court recognized, the significance of personal factors is influenced by the number of blood alcohol tests. “[A] single test conducted some time after the offense could result in a reliable extrapolation only if the expert had knowledge of many personal characteristics and behaviors of the defendant.” Id. at 916. Here, significant personal characteristics, such as the type and amount of food, if any, in Armstrong's stomach—a factor that Armstrong's expert testified was the most important and the State's expert acknowledged significantly affects alcohol absorption—were unknown. And the single blood draw makes it difficult to determine whether Armstrong was absorbing or eliminating alcohol at the time of the blood draw. The admission of retrograde extrapolation evidence when a single blood draw was taken more than two hours after the accident and the extrapolation calculation is insufficiently tethered to individual factors necessary to achieve a reliable calculation potentially invites the jury to determine Armstrong's guilt based on emotion or an improper ground—that the defendant had a high blood alcohol level several hours later—rather than a meaningful evaluation of the evidence. Thus, although relevant, the probative value of the extrapolation evidence could be sufficiently outweighed by this danger of unfair prejudice to preclude its admission.FN5 Under the circumstances presented, we cannot say that the district court manifestly abused or arbitrarily or capriciously exercised its discretion, that is, applied a clearly erroneous interpretation of the law or one not based on reason or contrary to the evidence or established rules of law.



----------------------------------------------------------------------------







Supreme Court of Nevada.

The STATE of Nevada, Petitioner,
v.
The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, in and for the COUNTY OF CLARK, and The Honorable Stefany Ann Miley, District Judge, Respondents,
and
Bobby Armstrong, Real Party in Interest.

No. 55918.

Dec. 29, 2011.

Background: Defendant in prosecution for driving under the influence (DUI) causing substantial bodily harm filed pretrial motion to exclude retrograde extrapolation as means of determining defendant's blood alcohol level (BAL) at time of charged offense. Following evidentiary hearing, the Eighth Judicial District Court, Clark County, Stefany Ann Miley, J., granted motion in part. State petitioned for writ of mandamus.



Holdings: The Supreme Court, Douglas, J., held that:

(1) retrograde extrapolation evidence is relevant to a DUI charge involving a theory of either being under the influence of an intoxicating liquor or having a BAL of 0.08 or more in one's blood or breath; but

(2) probative value in present case of retrograde extrapolation that was based on single sample of blood taken more than two hours after collision was substantially outweighed by danger of unfair prejudice.



Petition denied.





Pickering, J., filed a dissenting opinion in which Hardesty, J., joined.



West Headnotes


[1] Description: Headnote Citing ReferencesKeyCite Citing References for this Headnote

Description: Key Number Symbol250 Mandamus

The Supreme Court would exercise its discretion to consider merits of state's mandamus petition challenging district court's order, in prosecution for driving under the influence (DUI) causing substantial bodily harm, that excluded retrograde extrapolation as means of determining defendant's blood alcohol level at time of accident and excluded the numerical result of test of blood sample taken over two hours after accident; petition challenged district court's exercise of discretion, state had no other remedy at law because it could not appeal the final judgment in a criminal case, and petition raised important issue of law that needed clarification. West's NRSA 34.160, 34.170, 484C.430(1).


[2] Description: Headnote Citing ReferencesKeyCite Citing References for this Headnote

Description: Key Number Symbol250 Mandamus

A writ of mandamus is available to control a manifest abuse or arbitrary or capricious exercise of discretion. West's NRSA 34.160.


[3] Description: Headnote Citing ReferencesKeyCite Citing References for this Headnote

Description: Key Number Symbol250 Mandamus

Ultimately, the decision to entertain an extraordinary writ of mandamus petition lies within the Supreme Court's discretion, and it must consider whether judicial economy and sound judicial administration militate for or against issuing the writ, including consideration of whether an important issue of law needs clarification and public policy is served by the Supreme Court's invocation of its original jurisdiction. West's NRSA 34.160, 34.170.


[4] Description: Headnote Citing ReferencesKeyCite Citing References for this Headnote

Description: Key Number Symbol110 Criminal Law

The admission or exclusion of evidence rests within the district court's sound discretion.


[5] Description: Headnote Citing ReferencesKeyCite Citing References for this Headnote

Description: Key Number Symbol250 Mandamus

In the mandamus context, the Supreme court considers whether the district court's evidentiary ruling was a manifest abuse or arbitrary or capricious exercise of its discretion. West's NRSA 34.160.


[6] Description: Headnote Citing ReferencesKeyCite Citing References for this Headnote

Description: Key Number Symbol250 Mandamus

An arbitrary or capricious exercise of discretion, for which mandamus relief is available, is one founded on prejudice or preference rather than on reason, or contrary to the evidence or established rules of law. West's NRSA 34.160.


[7] Description: Headnote Citing ReferencesKeyCite Citing References for this Headnote

Description: Key Number Symbol250 Mandamus

A manifest abuse of discretion, in context of a mandamus petition, is a clearly erroneous interpretation of the law or a clearly erroneous application of a law or rule. West's NRSA 34.160.


[8] Description: Headnote Citing ReferencesKeyCite Citing References for this Headnote

Description: Key Number Symbol48A Automobiles

Retrograde extrapolation evidence is relevant to a driving under the influence (DUI) charge involving a theory of either being under the influence of an intoxicating liquor or having concentration of alcohol of 0.08 or more in one's blood or breath; such evidence has a tendency to make the existence of a consequential fact, i.e., the level of alcohol in a defendant's blood at a certain point in time, more probable than it would be without the evidence. NRS 48.015, 484C.430(1).


[9] Description: Headnote Citing ReferencesKeyCite Citing References for this Headnote

Description: Key Number Symbol48A Automobiles

Probative value of retrograde extrapolation of defendant's blood-alcohol level (BAL) at the time he was driving was substantially outweighed by danger of unfair prejudice in prosecution for driving under the influence of alcohol (DUI) causing substantial bodily harm; extrapolation was based on single blood sample taken over two hours after accident, experts' estimations of defendant's BAL at time of charged offense were based primarily on factors attributed to the “average” person rather than significant personal characteristics of defendant, and the high BAL of .18 at time of test potentially invited jurors to determine defendant's guilt based on emotion or an improper ground. NRS 48.035(1), 484C.430(1)(a, b).


[10] Description: Headnote Citing ReferencesKeyCite Citing References for this Headnote

Description: Key Number Symbol110 Criminal Law

Unfair prejudice, against which probative value of evidence is weighed in determining admissibility, is not limited to decisions based on emotion. West's NRSA 48.035(1).


[11] Description: Headnote Citing ReferencesKeyCite Citing References for this Headnote

Description: Key Number Symbol48A Automobiles

The following factors are relevant in prosecution for driving under the influence of alcohol (DUI) to achieving a sufficiently reliable retrograde extrapolation calculation of a defendant's blood alcohol level when driving: (1) gender, (2) weight, (3) age, (4) height, (5) mental state, (6) type and amount of any food in stomach, (7) type and amount of alcohol consumed, (8) when last alcoholic drink was consumed, (9) drinking pattern at the relevant time, (10) elapsed time between first and last drink consumed, (11) time elapsed between last drink consumed and blood draw, (12) number of samples taken, (13) length of time between offense and blood draws, (14) average alcohol absorption rate, and (15) average elimination rate. NRS 484C.430(1).


[12] Description: Headnote Citing ReferencesKeyCite Citing References for this Headnote

Description: Key Number Symbol48A Automobiles

Not every personal fact about the defendant must be known in prosecution for driving under the influence of alcohol (DUI) to construct a reliable retrograde extrapolation of a defendant's blood alcohol level at time of alleged offense. NRS 484C.430(1).


[13] Description: Headnote Citing ReferencesKeyCite Citing References for this Headnote

Description: Key Number Symbol48A Automobiles

A single blood-alcohol test conducted some time after charged offense of driving under the influence of alcohol (DUI) can result in a reliable extrapolation of blood alcohol level at time of charged offense only if the expert has knowledge of many personal characteristics and behaviors of the defendant. NRS 484C.430(1).


Original petition for a writ of mandamus or prohibition challenging an order of the district court granting in part the real party in interest's motion to preclude the' introduction of his blood alcohol test results in a prosecution for driving under the influence.
Petition denied.
Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Bruce W. Nelson, Deputy District Attorney, Clark County, for Petitioner.

Daniel J. Albregts, Ltd., and Daniel J. Albregts, Las Vegas; Mueller, Hinds & Associates and Craig A. Mueller and Michael J. Morey, Las Vegas, for Real Party in Interest.

BEFORE THE COURT EN BANC.



OPINION

By the Court, DOUGLAS, J.:



*1 In this original writ proceeding, we consider the admissibility of retrograde extrapolation evidence to estimate a defendant's blood alcohol level at a point in time based on a blood sample taken at a later point in time. We conclude that although retrograde extrapolation evidence is relevant in a prosecution for driving under the influence, under certain circumstances such evidence may be unfairly prejudicial and therefore inadmissible. Because the prosecution in this case had to rely on the results from a single blood sample and a number of the factors that affect the mathematical calculation necessary to a retrograde extrapolation were unknown, we cannot conclude that the district court manifestly abused or arbitrarily or capriciously exercised its discretion in concluding that the evidence would be unfairly prejudicial in this case. We therefore deny the petition.



FACTS AND PROCEDURAL HISTORY

The State charged real party in interest Bobby Armstrong with driving under the influence causing death and/or substantial bodily harm under two theories of liability: that he (1) was “under the influence of intoxicating liquor” or (2) had “a concentration of alcohol of 0.08 or more in his ... blood or breath” and did “any act or neglect[ed] any duty imposed by law while driving or in actual physical control” of a vehicle. NRS 484C.430(1) (formerly NRS 484.3795). According to the indictment, Armstrong was driving when his vehicle collided with another vehicle, causing substantial bodily harm to the other driver. The collision occurred at approximately 1:30 in the morning. A single blood sample was taken from Armstrong at 3:51 a.m., more than two hours after the collision. That blood sample had an alcohol level of .18. Armstrong filed a pretrial motion to exclude the blood alcohol test result. He argued that his blood was drawn outside the statutory two-hour window provided in NRS 484C.430(1)(c) FN1 and that the test was inadmissible because only one blood sample was obtained. He further argued that the retrograde extrapolation that the State would have to use to determine his blood alcohol level at the time he was driving was unreliable and therefore irrelevant and unfairly prejudicial. The State opposed the motion, arguing that retrograde extrapolation was not required to determine Armstrong's blood alcohol level at the time of the collision because his alcohol level was sufficiently high that a jury could determine that it was above .08 while he was driving, but even if the State were required to do so, any variables in the retrograde extrapolation go to the weight of that evidence rather than its admissibility. The State also argued that the blood alcohol test was admissible to show that Armstrong was driving under the influence of intoxicating liquor.



After a lengthy evidentiary hearing involving the conflicting testimony of two expert witnesses, the district court granted Armstrong's motion in part. The district court excluded retrograde extrapolation as a means of determining Armstrong's blood alcohol level at the time he was driving and the numerical result of the blood alcohol test but allowed the State to present more generalized evidence that the blood test showed the presence of alcohol. This original petition for a writ of mandamus followed.FN2



DISCUSSION

*2 [1] Description: Headnote Citing References[2] Description: Headnote Citing References[3] Description: Headnote Citing ReferencesA writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station, NRS 34.160, or to control a manifest abuse or arbitrary or capricious exercise of discretion, see Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603–04, 637 P.2d 534, 536 (1981). The writ will not issue, however, if a petitioner has a plain, speedy, and adequate remedy in the ordinary course of the law. NRS 34.170. Ultimately, the decision to entertain an extraordinary writ petition lies within our discretion, and we must “consider[ ] whether judicial economy and sound judicial administration militate for or against issuing the writ,” Redeker v. Dist. Ct., 122 Nev. 164, 167, 127 P.3d 520, 522 (2006), limited on other grounds by Hidalgo v. Dist. Ct., 124 Nev. 330, 341, 184 P.3d 369, 377 (2008), including whether “ ‘an important issue of law needs clarification and public policy is served by this court's invocation of its original jurisdiction,’ “ Diaz v. Dist. Ct., 116 Nev. 88, 93, 993 P.2d 50, 54 (2000) (quoting Business Computer Rentals v. State Treas., 114 Nev. 63, 67, 953 P.2d 13, 15 (1998)). The instant petition challenges the district court's exercise of discretion, and the State has no other remedy at law because it cannot appeal the final judgment in a criminal case. NRS 177.015(3) (“The defendant only may appeal from a final judgment or verdict in a criminal case.”). Because the petition raises an important issue of law that needs clarification, we exercise our discretion to consider its merits.



[4] Description: Headnote Citing References[5] Description: Headnote Citing References[6] Description: Headnote Citing References[7] Description: Headnote Citing ReferencesThe admission or exclusion of evidence rests within the district court's sound discretion. Thomas v. State, 122 Nev. 1361, 1370, 148 P.3d 727, 734 (2006). In the context of mandamus, this court considers whether the district court's evidentiary ruling was a manifest abuse or arbitrary or capricious exercise of its discretion. See NRS 34.160; Round Hill, 97 Nev. at 603–04, 637 P.2d at 536. An arbitrary or capricious exercise of discretion is one “founded on prejudice or preference rather than on reason,” Black's Law Dictionary 119 (9th ed.2009) (defining “arbitrary”), or “contrary to the evidence or established rules of law,” id. at 239, 637 P.2d 534 (defining “capricious”). See generally City Council v. Irvine, 102 Nev. 277, 279, 721 P.2d 371, 372 (1986) (concluding that “[a] city board acts arbitrarily and capriciously when it denies a license without any reason for doing so”). A manifest abuse of discretion is “[a] clearly erroneous interpretation of the law or a clearly erroneous application of a law or rule.” Steward v. McDonald, 330 Ark. 837, 958 S.W.2d 297, 300 (Ark.1997); see Jones Rigging and Heavy Hauling v. Parker, 347 Ark. 628, 66 S.W.3d 599, 602 (Ark.2002) (stating that a manifest abuse of discretion “is one exercised improvidently or thoughtlessly and without due consideration”); Blair v. Zoning Hearing Hd. of Tp. of Pike, 676 A.2d 760, 761 (Pa.Commw.Ct.1996) ( “[M]anifest abuse of discretion does not result from a mere error in judgment, but occurs when the law is overridden or misapplied, or when the judgment exercised is manifestly unreasonable or the result of partiality, prejudice, bias or ill will.”).



*3 The evidence at issue in this case involves retrograde extrapolation. Retrograde extrapolation is a “mathematical calculation used to estimate a person's blood alcohol level at a particular point in time by working backward from the time the blood [sample] was taken.” Com. v. Senior, 433 Mass. 453, 744 N.E.2d 614, 619 (Mass.2001). The calculation requires information regarding the rates at which alcohol is absorbed and excreted. Those rates can vary based on a number of factors, including: the amount of time between a person's last drink and the blood test, the amount and type of alcohol consumed, the time period over which alcohol was consumed, and personal characteristics such as age, weight, alcohol tolerance, and food intake. See Mata v. State, 46 S.W.3d 902, 915–16 (Tex.Crim.App.2001), overruled on other grounds by Bagheri v. State, 87 S.W.3d 657, 660–61 (Tex.App.2002).



[8] Description: Headnote Citing ReferencesRelevance is the first question in determining whether retrograde extrapolation evidence is admissible. See NRS 48.025 (providing that “[a]ll relevant evidence is admissible” unless otherwise excluded by statute or constitutional provision and that “[e]vidence which is not relevant is not admissible”). “ ‘[R]elevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” NRS 48.015. The district court appears to have concluded that retrograde extrapolation evidence had some relevance to the State's theories that Armstrong was driving under the influence or had a blood alcohol concentration above the legal limit at the time he was driving.FN3 Although we have not addressed the admissibility of retrograde extrapolation as a matter of law, we have alluded to its relevance in prosecutions for driving under the influence. See, e.g., Sheriff v. Burcham, 124 Nev. 1247, 1261, 198 P.3d 326, 335 (2008) (holding that State was not required to present retrograde extrapolation evidence to obtain grand jury indictment where grand jury could reasonably infer from two blood alcohol tests taken within reasonable time after driving that defendant's blood alcohol concentration was .08 or higher when he was driving); Anderson v. State, 109 Nev. 1129, 1135, 865 P.2d 318, 321 (1993) (pointing to retrograde extrapolation evidence in concluding that State presented sufficient evidence to support conviction). We take this opportunity to expressly recognize the relevance of retrograde extrapolation evidence. Retrograde extrapolation evidence is relevant to the two theories of driving under the influence charged in this case, as it has a tendency to make the existence of a consequential fact—the level of alcohol in a defendant's blood at a certain point in time—more probable than it would be without the evidence.



[9] Description: Headnote Citing References[10] Description: Headnote Citing ReferencesHaving determined that retrograde extrapolation evidence is relevant, we turn to the second question in determining whether retrograde extrapolation evidence is admissible: the danger of unfair prejudice. Under NRS 48.035(1), relevant evidence is inadmissible “if its probative value is substantially outweighed by the danger of unfair prejudice.” Because all evidence against a defendant will on some level “prejudice” ( i.e., harm) the defense, NRS 48.035(1) focuses on “unfair” prejudice. This court has defined “unfair prejudice” under NRS 48.035 as an appeal to “the emotional and sympathetic tendencies of a jury, rather than the jury's intellectual ability to evaluate evidence.” Krause Inc. v. Little, 117 Nev. 929, 935, 34 P.3d 566, 570 (2001); Schlotfeldt v. Charter Hosp. of Las Vegas, 112 Nev. 42, 46, 910 P.2d 271, 273 (1996). Although unfair prejudice commonly refers to decisions based on emotion, it is not so limited. See generally Fed.R.Evid. 403 advisory committee's note (explaining that unfair prejudice in federal analog to NRS 48.035(1) is an “undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one”); Tome v. United States, 513 U.S. 150, 160, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995) (stating that Advisory Committee Notes are helpful guide to interpreting Federal Rules of Evidence). As the United States Supreme Court has explained in addressing Federal Rule of Evidence 403,FN4 “[t]he term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.” Old Chief v. United States. 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997); see also Bhaya v. Westinghouse Elec. Corp., 922 F.2d 184, 188 (3d Cir.1990) (describing unfair prejudice as “undue tendency to suggest decision on an improper basis” (internal quotations omitted)); accord People v. Greenlee, 200 P.3d 363, 367 (Colo.2009) (noting that “[e]vidence is unfairly prejudicial where it introduces into the trial considerations extraneous to the merits, such as bias, sympathy, anger, or shock”); Camp Takajo, Inc. v. SimplexGrinnell, L.P., 957 A.2d 68, 72 (Me.2008) (stating that “unfair prejudice ... refers to an undue tendency to move the tribunal to decide on an improper basis, commonly, though not always, an emotional one” (quotation and footnote omitted)).



*4 Here, the district court's concern regarding unfair prejudice centered on the “many unknown variables” in the retrograde extrapolation calculation coupled with the reliance on a single blood sample. The suggestion is that the evidence is of limited probative value given those variables and the single sample, but the evidence itself is likely to move a jury to declare guilt based solely on a reaction to the blood alcohol level and the very real devastation caused by drunk driving rather than proof that the defendant was driving while under the influence or with a prohibited blood alcohol level. We, along with other jurisdictions, share the district court's concern.



Some jurisdictions have determined that the admissibility of retrograde extrapolation depends on whether enough factors affecting the calculation are known and have expressed concerns with calculations that rely solely on average rates of absorption and excretion. For example, in Mata v. State, the Texas Court of Criminal Appeals provided some guidance by explaining three factors courts should use in evaluating the reliability of retrograde extrapolation:



(a) the length of time between the offense and the test(s) administered; (b) the number of tests given and the length of time between each test; and (c) whether, and if so, to what extent, any individual characteristics of the defendant were known to the expert in providing his extrapolation. These characteristics and behaviors might include, but are not limited to, the person's weight and gender, the person's typical drinking pattern and tolerance for alcohol, how much the person had to drink on the day or night in question, what the person drank, the duration of the drinking spree, the time of the last drink, and how much and what the person had to eat either before, during, or after the drinking.


46 S.W.3d 902, 916 (Tex.Crim.App.2001), overruled on other grounds by Bagheri v. State, 87 S.W.Sd 657, 660–61 (Tex.App.2002). The court declined to design an “exact blueprint” for all cases and recognized that not every personal fact about the defendant must be known to construct a reliable extrapolation—otherwise “no valid extrapolation could ever occur without the defendant's cooperation, since a number of facts known only to the defendant are essential to the process.” Id. at 916–17. The court also indicated that the significance of those personal factors is influenced by the number of blood alcohol samples obtained and the time between multiple samples:

If the State had more than one test, each test a reasonable length of time apart, and the first test were conducted within a reasonable time from the time of the offense, then an expert could potentially create a reliable estimate of the defendant's [blood alcohol content] with limited knowledge of personal characteristics and behaviors. In contrast, a single test conducted some time after the offense could result in a reliable extrapolation only if the expert had knowledge of many personal characteristics and behaviors of the defendant. Somewhere in the middle might fall a case in which there was a single test a reasonable length of time from the driving, and two or three personal characteristics of the defendant were known to the expert. We cannot and should not determine today the exact blueprint for reliability in every case. Suffice it to say that the factors must be balanced.


*5 Id.; see also Burns v. State, 298 S.W.3d 697, 702 (Tex.App.2009) (concluding that expert's testimony was unreliable due to expert's admission that “he knew none of the factors required by Mata when only a single test is available” and because testimony was unreliable, it was irrelevant and “its probative value was greatly outweighed by its prejudicial effect”); accord Com. v. Petrovich, 538 Pa. 369, 648 A.2d 771, 773 (Pa.1994) (upholding trial court's conclusion that retrograde extrapolation expert's testimony was incomplete and elicited “an expert opinion which is necessarily based upon average dissipation rates, average absorption rates, and the alcohol content of the average drink” (internal quotations omitted)). See generally Kimberly S. Keller, Sobering Up Daubert: Recent Issues Arising in Alcohol–Related Expert Testimony, 46 S. Tex. L.Rev. 111, 122–29 (2004) (discussing concern in scientific community over the use of retrograde extrapolation calculations that do not employ factors that affect individual absorption and elimination rates, including (1) the type and amount of food in the stomach, (2) gender, (3) weight, (4) age, (5) mental state, (6) drinking pattern at the relevant time, (7) type and amount of beverage consumed, and (8) elapsed time between the first and last drink taken).

[11] Description: Headnote Citing References[12] Description: Headnote Citing ReferencesWe agree that achieving a reliable retrograde extrapolation calculation requires consideration of a variety of factors. The following factors are relevant to achieving a sufficiently reliable retrograde extrapolation calculation: (1) gender, (2) weight, (3) age, (4) height, (5) mental state, (6) the type and amount of food in the stomach, (7) type and amount of alcohol consumed, (8) when the last alcoholic drink was consumed, (9) drinking pattern at the relevant time, (10) elapsed time between the first and last drink consumed, (11) time elapsed between the last drink consumed and the blood draw, (12) the number of samples taken, (13) the length of time between the offense and the blood draws, (14) the average alcohol absorption rate, and (15) the average elimination rate. We observe, as the Mata court did, that not every personal fact about the defendant must be known to construct a reliable extrapolation, 46 S.W.3d at 916–17, but rather those factors must be balanced.



Turning to this case, the State and Armstrong presented experts who calculated Armstrong's estimated blood alcohol level based primarily on factors attributed to the “average” person and various hypothetical situations. The factors used in those calculations included: Armstrong's admission to the investigating officer at the scene that he drank two beers between 5 p.m. and 10 p .m., records indicating that Armstrong weighed 212 pounds, the time of the accident, the time of the blood draw, and the blood alcohol level in the single sample (.18). There was no evidence presented concerning Armstrong's age or height, the type and amount of food in his stomach, if any, his regular drinking pattern, or his emotional state after the collision.



*6 [13] Description: Headnote Citing ReferencesAlthough several of the factors identified above were known, other significant factors were not and, significantly, only one blood draw was obtained. As the Mata court recognized, the significance of personal factors is influenced by the number of blood alcohol tests. “[A] single test conducted some time after the offense could result in a reliable extrapolation only if the expert had knowledge of many personal characteristics and behaviors of the defendant.” Id. at 916. Here, significant personal characteristics, such as the type and amount of food, if any, in Armstrong's stomach—a factor that Armstrong's expert testified was the most important and the State's expert acknowledged significantly affects alcohol absorption—were unknown. And the single blood draw makes it difficult to determine whether Armstrong was absorbing or eliminating alcohol at the time of the blood draw. The admission of retrograde extrapolation evidence when a single blood draw was taken more than two hours after the accident and the extrapolation calculation is insufficiently tethered to individual factors necessary to achieve a reliable calculation potentially invites the jury to determine Armstrong's guilt based on emotion or an improper ground—that the defendant had a high blood alcohol level several hours later—rather than a meaningful evaluation of the evidence. Thus, although relevant, the probative value of the extrapolation evidence could be sufficiently outweighed by this danger of unfair prejudice to preclude its admission.FN5 Under the circumstances presented, we cannot say that the district court manifestly abused or arbitrarily or capriciously exercised its discretion, that is, applied a clearly erroneous interpretation of the law or one not based on reason or contrary to the evidence or established rules of law.



We are not unmindful of the State's concerns about prosecuting offenders for driving under the influence, but the State's accusations that the district court's order “precludes the state from ever convicting a drunk driver of having a .08 or more at [the] time of driving” and “legalizes driving under the influence of alcohol so long as a chemical test is not done within two hours of driving” go a step too far. The State may present evidence that is relevant and not unfairly prejudicial. NRS 48.025(1); NRS 48.035(1). Although retrograde extrapolation has its place in proving that a defendant was driving under the influence, it also has the potential to encourage a conviction based on an improper basis when the calculation is not sufficiently reliable in a given case. There may be circumstances consistent with this opinion in which a calculation based on the results of a single blood sample is reliable and whose relevance is not substantially outweighed by the danger of unfair prejudice; that is up to the district court to determine on a case-by-case basis. But even when retrograde extrapolation evidence is not admissible, other evidence may establish that a defendant was driving under the influence as prohibited by NRS 484C.430(1)(a). See Sheriff v. Burcham, 124 Nev. 1247, 1258, 198 P.3d 326, 333 (2008) (concluding that State presented sufficient evidence to establish probable cause to believe defendant was driving under the influence based on testimony about defendant's driving and circumstances of accident, defendant's smell and physical appearance after accident, and defendant's admissions about drinking). Because the State has not demonstrated a manifest abuse or arbitrary or capricious exercise of discretion in this case, we deny the petition.



We concur: SAITTA, C.J., CHERRY, GIBBONS and PARRAGUIRRE, JJ.



PICKERING, J., with whom HARDESTY, J., agrees, dissenting:



*7 The majority's analysis does not distinguish between the science of retrograde extrapolation and the legal standards by which the admissibility of expert testimony is judged and, as a result, falls into error. Only one toxicologist, Dr. Hiatt, testified at the hearing on Armstrong's motion to suppress.FN1 (The other witness, Terry Cook, is a forensic chemist who tests blood for alcohol content; he does not perform retrograde extrapolation.) Dr. Hiatt testified that the known facts of this case “fit” the science of retrograde extrapolation, permitting an inference that, if Armstrong's blood alcohol level was .18 two hours and 21 minutes after the collision, it was at least that, and probably higher, at the time the collision occurred. Such evidence is directly relevant to the charges Armstrong faces: driving under the influence of alcohol, NRS 484C.430(1)(a), and/or driving with a .08 or greater blood alcohol level, NRS 484C.430(1)(b), resulting in substantial bodily harm, a category B felony.



The “unknown variables” that led the district court to exclude Armstrong's test results—variables the majority recasts as “factors” but equally fails to tie to the science—might invite unreliable extrapolation in some cases but, per Dr. Hiatt, this is not such a case. True, there was only one blood draw. If we didn't know whether Armstrong was in the absorption or the elimination phase when his blood was drawn, that could render the test scientifically indeterminate and the test results inadmissible. Here, however, Dr. Hiatt testified that the known facts, combined with the science of retrograde extrapolation, put Armstrong squarely in the elimination phase when his blood was drawn.



The known facts on which Dr. Hiatt relies are these: (1) Armstrong told the police at the scene that he had been drinking beer but that he stopped drinking at 10 p.m.; (2) the collision occurred at 1:30 a.m.; and (3) Armstrong traveled by ambulance from the scene to the hospital, where his blood was drawn at 3:51 a.m. Unless Armstrong lied to the police—significant in its own right—three and one-half hours elapsed between the time of his last drink and the collision. And unless the police, the ambulance technicians, or the hospital staff served Armstrong alcohol, of which there is zero evidence, nearly six hours elapsed between the time of Armstrong's last drink and the blood draw.



“When a person stops consuming alcohol, his or her body eventually reaches an absorption point, where the body completes absorption of the alcohol he or she has ingested, and enters the elimination phase, where the body is only eliminating alcohol.” United States v. Tsosie, 791 F.Supp.2d 1099, 1103 (D.N.M.2011). While a person's blood alcohol level will rise even after he or she stops drinking, once the absorption phase ends, the blood alcohol levels decline. Id. The uncontested evidence presented to the district court established that the absorption process generally requires one to three hours. Based on Armstrong's statement to the police that he finished his last drink by 10 p.m., Dr. Hiatt opined that Armstrong had completed his absorption phase before the collision. His blood alcohol level “should have peaked by [1:30 a.m.]. It's hard to imagine a scenario in which it would not have reached a peak at the time.”



*8 Once a person completes absorption and enters the elimination phase, blood alcohol levels decline in linear fashion at a rate ranging from .015 to .02 mg/mL/h (Dr. Hiatt) or .01 to .03 mg/mL/h (Mr. Cook). Since Armstrong's blood alcohol was .18—more than twice the legal limit—two hours and 21 minutes after the collision and almost six hours after he said he took his last drink, Dr. Hiatt was prepared to opine to a reasonable degree of scientific certainty that Armstrong's blood level at the time of the collision was at least a .08 which, assuming the other elements of the offense are shown, establishes a violation of NRS 484C.430(1)(b). “[I]f this was a borderline case, I would not feel comfortable making these statements, but this is clearly not a borderline case.” Using Armstrong's 3:51 a.m. blood alcohol level of .18 and Dr. Hiatt's .015 elimination rate, and accepting that Armstrong had entered the elimination phase by 1:30 a.m., in fact, yields an approximate blood alcohol level at the time of the collision of .21.



Retrograde extrapolation enjoys “general acceptance in the scientific community,” Shea v. Royal Enterprises, Inc., No. 09 Civ. 8709(THK), 2011 WL 2436709, at *4 (S.D.N.Y. June 16, 2001) (canvassing cases), and has been recognized as the legitimate subject of expert testimony in Nevada, Anderson v. State, 109 Nev. 1129, 1135, 865 P.2d 318, 321 (1993); see Sheriff v. Burcham, 124 Nev. 1247, 198 P.3d 326 (2008), and in state and federal courts across the country, 1 Kenneth S. Broun, McCormick on Evidence § 205, at 849 (6th ed.2006) (“arguments that the extrapolation process itself is so uncertain as to be inadmissible under [either the] Frye or Daubert [tests for admitting expert testimony] have not prevailed”). Individual facts in individual cases may make it scientifically inappropriate to use a defendant's post-accident blood alcohol level to infer his blood alcohol level while driving. Classic examples include the case of a defendant who continues to drink after the accident and before the blood draw, skewing his test results, United States v. DuBois, 645 F.2d 642 (8th Cir.1981); the hypothetical defendant who drinks nothing until seconds before the accident, then “chug-a-lugs” a huge quantity of vodka, and so was just beginning his absorption phase when he crashed, but see State v. Burgess, 188 Vt. 235, 5 A.3d 911, 917–18 (Vt.2010) (rejecting hypothetical “chug-a-lug” theory as a basis for excluding blood alcohol results where there was no evidence to support it and the defendant told the police he had had only had one beer); or where the blood alcohol test results are close to the legal limit and their relevance depends on whether the defendant was in the absorption or elimination phase, of which there is no proof. For a general discussion, see 5 David L. Faigman, Michael J. Sakes, Joseph Sanders & Edward K. Cheng, Modern Scientific Evidence: The Law and Science of Expert Testimony § 41:7 (2010).FN2



*9 Nothing approaching these situations obtains here. The admission or exclusion of evidence is unquestionably entrusted to the sound discretion of the district court. See Williams v. Dist. Ct., 127 Nev. ––––, ––––, 262 P.3d 360, 364 (2011). Nonetheless, the majority has elected to accept writ review in this case and to affirm a decision that misapplies established law recognizing the admissibility, in proper circumstances, of blood test result and retrograde extrapolation evidence in DUI cases. My research shows no other case to have excluded such evidence on comparable facts and a number that have deemed it scientifically reliable and admissible. State v. Patterson, 708 S.E.2d 133 (N.C.Ct.App.2011) (canvassing cases); State v. Burgess, 188 Vt. 235, 5 A.3d 911 (Vt.2010); United States v. Cope, No. 11–cr–00106–JRT, 2011 WL 2491283 (D.Colo. June 17, 2011); United States v. Tsosie, 791 F.Supp.2d 1099 (D.N.M.2011). Where, as here, an evidentiary issue concerning expert testimony presents questions of law as well as discretion, and is of significant importance to the administration of justice, this court has not hesitated to grant writ relief. Williams, 127 Nev. at ––––, 262 P.3d at 364–65. Because I would grant writ relief in this case and direct the district court to admit the evidence it has suppressed, I respectfully dissent.



I concur: HARDESTY, J.



FN1. The State did not charge Armstrong with a violation under NRS 484C.430(1)(c).

FN2. The State filed its petition in the alternative, seeking relief in mandamus or prohibition. Because prohibition is focused on arresting the proceedings of a district court that is acting in excess of its jurisdiction, NRS 34.320, and the district court here clearly had jurisdiction over the prosecution and to decide evidentiary issues, we conclude that prohibition is not the appropriate vehicle for seeking relief in this matter.

FN3. The district court's order is not entirely clear on this point, but its focus on unfair prejudice indicates that the district court determined that the evidence was relevant since the weighing determination for unfair prejudice presupposes that the evidence is relevant. See NRS 48.035(1) (“Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice....”).

FN4. Rule 403 is the federal counterpart to NRS 48.035 and provides: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

FN5. The district court also excluded the blood alcohol level shown in the test result but allowed the State to present general evidence that there was alcohol in the blood sample, which was relevant to the State's theory under NRS 484C.430(1)(a). Admitting the specific blood alcohol level in this case, where there was a single blood draw, without extrapolation testimony could encourage a guilty verdict based on similar improper grounds as discussed above.

FN1. Dr. Hiatt holds a B.A. in chemistry from Occidental College, a Ph.D. in organic chemistry from Yale University, and did significant post-doctoral work in clinical chemistry at the University of California Medical Center in San Francisco. He worked for many years as a toxicologist in Las Vegas before his retirement.

FN2. The majority places great emphasis on Mata v. State, 46 S.W.3d 902 (Tex.Crim.App.2001). Of critical significance, the expert in Mata did not know “the length of the drinking spree, the time of the last drink, and the person's weight,” id. at 915, all of which were established here by Armstrong or his hospital records. Also significant, Texas requires expert proof to be by clear and convincing evidence, Morris v. State, 214 S.W.3d 159, 173 (Tex.App.2007), and Mata has since been limited and held not to preclude blood test result evidence when expert retrograde extrapolation testimony is not offered. Bagheri v. State, 329 S.W.3d 23, 27 (Tex.App.2010). The evidentiary use Bagheri permits is, of course, one of the uses to which the State wishes to put Armstrong's blood test results here, a point the majority elides.

Nev.,2011.
State v. Eighth Judicial Dist. Court of State ex rel. County of Clark
--- P.3d ----, 2011 WL 6840685 (Nev.), 127 Nev. Adv. Op. 84

Happy New Year, everybody! Now, how are you getting home from that party? where I live, good luck getting a taxi. And if you've had some champagne and you're even thinking about driving home... well, don't.

Public service announcement: Drinking and driving is not only against the law, but it can be deadly.

Public service announcement: Over the limit, under arrest.

Public service announcement: Friends don't let friends drive drunk.

All right, so maybe you'll walk home. Smart move, right?

That's a terrible idea, walking drunk is one of the most dangerous activities you can engage in.

Truly, if you're faced exactly with two choices, walking drunk or driving drunk, you absolutely should drive drunk.

Not advocating that people drive drunk. We know how incredibly dangerous that is. But what about drunk walking? Is that dangerous? Consider a few numbers. In 2009, the most recent year for which we have data, about 34,000 people died in traffic accidents. Roughly half of them were drivers -- 41 percent of whom were drunk. Now, there were about 4,000 pedestrians killed -- and 35 percent of them were drunk. Here's Levitt again:

For every mile walked drunk, turns out to be eight times more dangerous than the mile driven drunk. So just to put it simply, if you need to walk a mile from a party to your home, you're eight times more likely to die doing that than if you jump behind the wheel and drive your car that same mile.

Now there are some caveats here. A calculation like this requires some assumptions, because there's no government database on drunk walking. Also, people drive drunk much farther distances than they'd walk drunk. And most important: a drunk walker can't hurt or kill someone else the way a drunk driver can. That said, the death toll from drunk walking is undeniable.

The danger of impaired walking is not insignificant. And certainly when it comes down to you, it's definitely significant.

trauma surgeon at Loyola University Health System in the Chicago area. He's used to seeing a New Year's Day spike in pedestrians who've been hit by cars. As a matter of fact, January 1st is the deadliest day of the year for pedestrians -- and 58 percent of the people who died were drunk.

I'd rather work New Year's Eve than New Year Day. Because a lot of the time on New Year's Day, that's when people start to realize someone's missing, where are they? And then they find them at the bottom of the stairs or on the side of the road, injured.

Drunk walking. A few years ago, his cousin was hit by a car and killed while walking home from a New Year's party. He'd been drinking, thought it was better to leave his car, and go home on foot. believes we've done a pretty good job getting out the "don't drink and drive" message -- but we could a lot better with "don't drink and walk."

For 20 years, we've been told you should never, ever drive drunk. We should have been told you should never, ever walk drunk and you should never, ever drive drunk. And because nobody thought about it when we were coming up with what was moral and immoral, somehow now, drunk walking just can't find its way into the immoral box.

So listen, have a great New Year's celebration, but if a friend has been drinking and starts reaching for the car keys -- or decides to set off on foot -- don't let him. Because remember: friends don't let friends walk drunk (or drive drunk.)

San Diego is a host for out-of-towners, from Christmas vacationers to business folks to United States Marine Corp and Navy members of the military, raising local DUI arrests, attorneys know.

San Diego is #1 in the country for DUI or drunk driving, according to lawyers citing a new report from Insurance.com.

The company took the number of people applying for insurance quotes through one of its websites, then determined the percentage that reported at least one alcohol-related violation.

This does not necessarily mean San Diego is home to more drunks.

Many reasons cause increased DUI convictions in San Diego, attorneys note. A lack of a functional public transportation system and efficient or enforcement-heavy policing are both cited as reasons making it more likely that individuals will drink and drive or that they’ll be caught doing so.

Los Angeles came second and San Francisco fifth. San Jose, last year’s number two, dropped to seventh on the 2011 list.

5 California Traffic laws most from San Diego might not know:

• Earplugs: It's illegal in California to drive or bicycle while wearing "a headset covering, or earplugs in, both ears." Exceptions are made for drivers of emergency vehicles and trash trucks, or anyone using "earplugs or molds that are specifically designed to attenuate injurious noise levels."

• GPS: You can attach a unit to your windshield, but only to the lower corners of the driver's or passenger's side. Putting it anywhere in the middle is outlawed by the state.

• Headlights: You don't have to turn them on when using the windshield wipers unless the wipers are "in continuous use due to rain, mist, snow, fog, or other precipitation or atmospheric moisture."

• Radio: State law says it is illegal to play "any sound amplification system" so loud that it can be heard 50 or more feet from the vehicle. Anyone who has driven in Los Angeles knows this is not generally enforced, criminal defense lawyers maintain.

• Barefoot: It's legal to drive shoeless, even on a motorcycle. That doesn't mean it's a good idea, especially if DUI, say attorneys. "We obviously don't recommend it, but there's no law against it," says California Highway Patrol.

San Diego DUI criminal defense attorneys know that someday the California
legislature may increase the lookback period for a drunk driving from 10 years
to a larger number of years: 12, 15, 18, lifetime?

They already went from 5 to 7 and then 7 to 10 without a legal hitch.

A lifetime DUI would mean more work for DUI defense lawyers, court clerks,
prosecutors, judges, investigators and others. It would mean higher costs
for everyone. It would unnecessarily crowd the jails which are overcrowded
already.

In a recent Orange County case, the son of former Rams football coach Ray Malavasi,
Dennis Malavasi, was found slumped behind the wheel of an idling pickup, a half-empty
bottle of malt liquor at his side. Once woke up, he was charged with with drunk driving.
At least he was NOT driving. The vehicle was not moving. He could have drank the
alcohol AFTER he parked there.

Convicted 12 times for California DUI, in 1976, 1979, 1986, 1987, twice in 1989, twice in
1991, 1993, 1997, 2000, 2001 and 2011, per Orange County District Attorney's Office,
California Superior Court records and California Department of Corrections records.

California law almost let Malavasi off with nothing more than a misdemeanor for DUI number 13 but it did not!

If he had stayed out of trouble for just 1 year longer, all of his prior DUI arrests would have been too old to count against him under state mandatory-sentencing laws. He would have faced some time in the county jail, at most.

Malavasi was months away from benefitting from a provision in California law that counts prior DUI convictions for a maximum of 10 years when it comes to calculating mandatory sentences.

Most other states have similar time limits, meant to give offenders a chance to change their ways, but there's a move by one renegade California legislator to unreasonably entirely remove such look-back limits for DUIs. That state senator leads the unnecessary push of a law which only affects "one in a milltion," folks like Malavasi. He is described by DUI prosecuting attorneys as just a one-in-a-million repeat offender.

Show some sympathy. It was pain making him drink. He had compressed vertebrae in his back, a herniated disc, he explained in his handwritten letters from jail. He sought relief in a bottle, and paid the consequences his entire adult life.

California DUI Police, prosecuting lawyers, judges and juries convicted him, records show. His DUI record and addictions landed him in prison so often that hardly a year went by when he didn't spend some time behind bars. A judge even ordered him to install an ignition interlock device (IID) on his car, a punishment handed down to six percent of convicted DUI drivers in Orange County. He followed court procedures by submitting a sworn declaration to the court that he did not own a vehicle.

To his credit, he hadn't had a DUI conviction since late 2001. Then police found him nodding off behind the wheel of a pickup last summer 2010. Not sure how he was convicted as there seems to be proof issues. A neighbor called police to a leafy neighborhood in Huntington Beach, complaining that the truck had made a dangerous, screeching U-turn. Malavasi later claimed he was moving into a new house, hadn't been drunk when he drove, and had left the truck on so he could listen to the radio. Later he was a .24% He couldn't stand straight by the time officers arrived but the truck did not move!

Repeat drunk drivers are supposed to face progressively harsher sentences for every new conviction – jail time, then prison time, then even more prison time. But California law bases those mandatory sentences only on prior convictions from the past 10 years.

Malavasi was about a year shy of hitting that mark when police picked him up for what would become his 13th conviction. If he had made it, nothing in the law would have required that he be treated any differently than a first-time offender at his sentencing. He would have faced little more than a fine, a suspended license and some time in jail, not several years in state prison.

"If that (prior) case would have dropped off, we would have been filing a misdemeanor," Senior Assistant District Attorney Joe D'Agostino said. "This would have been the highest-grade misdemeanor we have," he added – but Malavasi would not have faced anything more than a year in jail.

A bill introduced by state Sen. Bill Emmerson, R-Hemet, unfairly and unreasonably would entirely remove such time limits on prior DUIs. It would mean that people convicted once of drunk driving would forever face tougher sentences if they get picked up for driving drunk again. Pretty harsh for 1 in a 1,000,000.

The Legislature has considered such a move before, according to a legislative analysis, but decided the 10-year window would take care of most habitual drunken drivers. Emmerson's shortsighted bill was appropriately held up without discussion this year because it almost certainly would exacerbate the state's prison crowding.

States limit on how long a DUI drunk driving conviction can be used against a repeat offender in calculating mandatory sentences. 10 years is the standard and fair window.

An equal protection attack may work for some criminal defense attorneys, depending on WHERE the client had an older DUI prior conviction. California courts vary in their record keeping. Some court maintain records for a more extensive period of time than other courts.

Would it not be unfair if a person with a DUI conviction lived in an efficient county which has DUI conviction records forty or so years old but other counties only maintain DUI records twelve or eighteen years old?

Similar laws in states other than California have DUI laws which essentially state the look back can only be to X amount of years based on that being the furthest back the most inefficient county maintains records.

California DUI criminal defense attorneys reasonably maintain that those laws recognize that a person caught driving drunk as a teenager, and then again in middle age, doesn't have the same kind of problem as someone who blows 0.20 percent every other year.

"I don't believe that we should give up on people," said Joshua Dale, a prominent San Francisco DUI criminal defense attorney and Executive Director and CFO of the California DUI Lawyers Association.

Emmerson said he plans to try again next year, in part because of people like Malavasi. "This is exactly why I introduced this bill. Those records do get wiped out after 10 years (but that is not an accurate statement as they stay on one's DMV record). People get by on much lesser counts."

Malavasi, though, came up short. He still had his 2001 conviction, a felony, lingering on his record when a prosecutor rose and told the court after his latest arrest that he was a danger to society. The jury found him guilty; the judge gave him six years in prison but put that sentence on hold and ordered Malavasi to check into a voluntary treatment program. He did – and then because of healthy problems, he checked himself out a few months later.

What might help DUI defendants is their criminal defense attorneys setting a jury trial within the statutory speedy time limit. Why? Well, it could help the accused because a number of San Diego county and California DUI courts are indicating they can not provide old priors to the prosecuting lawyer in time for the jury trial. It would be quite a race and a resource drainer.

What also might help those accused of DUI is having one's attorney submit the prior drunk driving conviction issue to the jury.

Apprendi vs New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000):

“In sum, our reexamination of our cases in this area, and of the history upon which they rely, confirms the opinion that we expressed in Jones. [HN7] Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond [**2363] the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case: "It is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.”

Golden State Warriors guard Charlie Bell was taken into custody yesterday in DUI Court. He appeared in court at .09% BAC, legally above California's driving limit. It was a hearing on pending DUI / drunk driving case, San Diego lawyers are told.

Bell was held in a holding cell until he "sobered up". His attorney indicated he came back in court today.

Bell was arrested in Flint Township on Oct. 21 for drunk driving, driving on a suspended license and failing to stop at a stop sign, and has already been suspended for the first regular season NBA game. This may trigger a longer suspension, if not end his career although let's hope not.

San Diego County Sheriff's Department plans to block the roads with DUI checkpoints in the following cities on the following dates:

• December 9th Imperial Beach
• December 10th Encinitas
• December 16th Vista
• December 16th Lemon Grove
• December 17th Santee
• December 17th San Marcos

All checkpoints will begin at about 1900 hours and run to approximately 0200 hours, attorneys warn.

Additionally, San Diego Police Department will have a drunk driving checkpoint at an undisclosed location friday December 9, 2011.

Police probably cannot even perform the outdated "Field Sobriety Tests". Click on this video to see a "DUI cop" have trouble performing the test he's about to give to a lady.

San Diego DUI criminal defense attorneys understand how these acrobatics are unreliable, untrustworthy and often improperly administered. The gymnastics an investigating officer requires of a subject are unfair.

Bottom line: no supporting scientific data indicates the results of these tests conclusively show a person is driving under the influence of alcohol or impaired.

Injuries, physical conditions, poor instructions, unlevel space, inadequate lighting, interfering noise or light, not practicing FST's ever, not taking FST's prior to getting your license, and other reasonable factors are point to the fact California DUI lawyers know: people may be unable or not good subjects to try to do these tests.

Not enough is known to conclusively use in a DUI trial court. Yet cops and attorney prosecutors do it every day in San Diego county.

It's time to sit back and question these tests on all kinds of levels.

According to prominent DUI defense attorney Donald Bartell of Riverside California, lawyers in San Diego can use the below law to get a restricted license for clients following 90 days of a suspension period upon conviction of something other than a DUI, e.g. a reckless driving charge or lower.

BILL NUMBER: AB 520 CHAPTERED  BILL TEXT   CHAPTER  657  FILED WITH SECRETARY OF STATE  OCTOBER 9, 2011  APPROVED BY GOVERNOR  OCTOBER 9, 2011  PASSED THE SENATE  SEPTEMBER 7, 2011  PASSED THE ASSEMBLY  SEPTEMBER 8, 2011  AMENDED IN SENATE  SEPTEMBER 2, 2011  AMENDED IN SENATE  JUNE 28, 2011  AMENDED IN ASSEMBLY  MAY 31, 2011  INTRODUCED BY   Assembly Member Ammiano                          FEBRUARY 15, 2011     An act to amend Sections 12813, 13353.3, 13353.4, and 23575 of the Vehicle Code, relating to vehicles.    LEGISLATIVE COUNSEL'S DIGEST      AB 520, Ammiano. Vehicles: reckless driving: suspension of licenses.    Existing law requires a person's driving privilege to be suspended upon conviction of specified driving-under-the-influence (DUI) offenses for one year. Existing law terminates the licensing suspension if certain conditions are met, including if the person is eligible to apply for a restricted license. Under existing law, a person who drives a vehicle upon a highway in willful or wanton disregard for the safety of a person or property is guilty of reckless driving. Existing law provides that, when a person is charged with, and pleads guilty or nolo contendere to, reckless driving in satisfaction of, or as a substitute for, an original charge for a DUI, and the court accepts the plea of guilty or nolo contendere, the conviction is a prior offense for purposes of specified laws relating to punishments imposed for DUI convictions.    This bill would terminate a driver's license suspension, and make the person eligible for a restricted driver's license, for a person convicted of reckless driving in satisfaction of, or substitute for, an original charge of driving-under-the-influence, if certain conditions are met, including that the person complete a 90-day suspension period and install an ignition interlock device. The bill would require the department to advise the person of the above conditions. The bill would require that the restricted driver's license privilege be subject to certain restrictions, including, among other things, that upon receipt of notification from the installer that a person has attempted to remove, bypass, or tamper with the ignition interlock device, the privilege to operate a motor vehicle shall immediately be suspended.    The bill would make other technical and conforming changes to these provisions.   THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:    SECTION 1.  Section 12813 of the Vehicle Code is amended to read:    12813.  (a) The department may, upon issuing a driver's license or after issuance whenever good cause appears, impose restrictions suitable to the licensee's driving ability with respect to the type of, or special mechanical control devices required on, a motor vehicle which the licensee may operate or impose other restrictions applicable to the licensee that the department may determine to be appropriate to assure the safe operation of a motor vehicle by the licensee.    (b) The department may issue either a special restricted license or may set forth the restrictions upon the usual license form.    (c) The authority of the department to issue restricted licenses under this section is subject to Sections 12812, 13352, 13353.3, and 13352.5.   SEC. 2.  Section 13353.3 of the Vehicle Code is amended to read:    13353.3.  (a) An order of suspension of a person's privilege to operate a motor vehicle pursuant to Section 13353.2 shall become effective 30 days after the person is served with the notice pursuant to Section 13382 or 13388, or subdivision (b) of Section 13353.2.    (b) The period of suspension of a person's privilege to operate a motor vehicle under Section 13353.2 is as follows:    (1) If the person has not been convicted of a separate violation of Section 23103, as specified in Section 23103.5, or Section 23140, 23152, or 23153, or Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code, the person has not been administratively determined to have refused chemical testing pursuant to Section 13353 or 13353.1, or the person has not been administratively determined to have been driving with an excessive concentration of alcohol pursuant to Section 13353.2 on a separate occasion, which offense or occurrence occurred within 10 years of the occasion in question, the person's privilege to operate a motor vehicle shall be suspended for four months.    (2) (A) If the person has been convicted of one or more separate violations of Section 23103, as specified in Section 23103.5, or Section 23140, 23152, or 23153, or Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code, the person has been administratively determined to have refused chemical testing pursuant to Section 13353 or 13353.1, or the person has been administratively determined to have been driving with an excessive concentration of alcohol pursuant to Section 13353.2 on a separate occasion, which offense or occasion occurred within 10 years of the occasion in question, the person's privilege to operate a motor vehicle shall be suspended for one year, except as provided in subparagraphs (B) and (C).    (B) The one-year suspension pursuant to subparagraph (A) shall terminate if the person has been convicted of a violation arising out of the same occurrence and all of the following conditions are met:    (i) The person is eligible for a restricted driver's license pursuant to Section 13352.    (ii) The person installs an ignition interlock device as required in Section 13352 for that restricted driver's license.    (iii) The person complies with all other applicable conditions of Section 13352 for a restricted driver's license.    (C) The one-year suspension pursuant to subparagraph (A) shall terminate after completion of a 90-day suspension period, and the person shall be eligible for a restricted license if the person has been convicted of a violation of Section 23103, as specified in Section 23103.5, arising out of the same occurrence, has no more than two prior alcohol-related convictions within 10 years, as specified pursuant to subparagraph (A), and all of the following conditions are met:    (i) The person satisfactorily provides, subsequent to the underlying violation date, proof satisfactory to the department of enrollment in a nine-month driving-under-the-influence program licensed pursuant to Chapter 9 (commencing with Section 11836) of Part 2 of Division 10.5 of the Health and Safety Code that consists of at least 60 hours of program activities, including education, group counseling, and individual interview sessions.    (ii) The person agrees, as a condition of the restriction, to continue satisfactory participation in the program described in clause (i).    (iii) The person installs an ignition interlock device and submits the "Verification of Installation" form described in paragraph (2) of subdivision (h) of Section 13386.    (iv) The person agrees to maintain the ignition interlock device as required pursuant to subdivision (g) of Section 23575.    (v) The person provides proof of financial responsibility, as defined in Section 16430.    (vi) The person pays all license fees and any restriction fee required by the department.    (vii) The person pays to the department a fee sufficient to cover the costs of administration of this paragraph, as determined by the department.    (D) The department shall advise those persons that are eligible under subparagraph (C) that after completion of 90 days of the suspension period, the person may apply to the department for a restricted driver's license, subject to the conditions set forth in subparagraph (C).    (E) The restricted driving privilege shall become effective when the department receives all of the documents and fees required under subparagraph (C) and remain in effect for at least the remaining period of the original suspension and until the person provides satisfactory proof to the department of successful completion of a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code. The restricted driving privilege shall be subject to the following conditions:    (i) If the driving privilege is restricted under this section, proof of financial responsibility, as described in Section 16430, shall be maintained for three years. If the person does not maintain that proof of financial responsibility at any time during the restriction, the driving privilege shall be suspended until the proof required pursuant to Section 16484 is received by the department.    (ii) For the purposes of this section, enrollment, participation, and completion of an approved program shall be subsequent to the date of the current violation. Credit may not be given to a program activity completed prior to the date of the current violation.    (iii) The department shall terminate the restriction issued pursuant to this section and shall suspend the privilege to operate a motor vehicle pursuant to subparagraph (A) immediately upon receipt of notification from the driving-under-the-influence program that the person has failed to comply with the program requirements. The privilege shall remain suspended until the final day of the original suspension imposed pursuant to subparagraph (A).    (iv) The department shall terminate the restriction issued pursuant to this section and shall immediately suspend the privilege to operate a motor vehicle pursuant to subparagraph (A) immediately upon receipt of notification from the installer that a person has attempted to remove, bypass, or tamper with the ignition interlock device, has removed the device prior to the termination date of the restriction, or fails three or more times to comply with any requirement for the maintenance or calibration of the ignition interlock device ordered pursuant to this section. The privilege shall remain suspended for the remaining period of the original suspension imposed pursuant to subparagraph (A).    (3) Notwithstanding any other law, if a person has been administratively determined to have been driving in violation of Section 23136 or to have refused chemical testing pursuant to Section 13353.1, the period of suspension shall not be for less than one year.    (c) If a person's privilege to operate a motor vehicle is suspended pursuant to Section 13353.2 and the person is convicted of a violation of Section 23152 or 23153, including, but not limited to, a violation described in Section 23620, arising out of the same occurrence, both the suspension under Section 13353.2 and the suspension or revocation under Section 13352 shall be imposed, except that the periods of suspension or revocation shall run concurrently, and the total period of suspension or revocation shall not exceed the longer of the two suspension or revocation periods.    (d) For the purposes of this section, a conviction of an offense in any state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or the Dominion of Canada that, if committed in this state, would be a violation of Section 23103, as specified in Section 23103.5, or Section 23140, 23152, or 23153, or Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code, is a conviction of that particular section of the Vehicle Code or Penal Code.    (e) The holder of a commercial driver's license who was operating a commercial motor vehicle, as defined in Section 15210, at the time of a violation that resulted in a suspension or revocation of the person's noncommercial driving privilege is not eligible for the restricted driver's license authorized pursuant to this section.   SEC. 3.  Section 13353.4 of the Vehicle Code is amended to read:    13353.4.  (a) Except as provided in Section 13353.3, 13353.7, or 13353.8, the driving privilege shall not be restored, and a restricted or hardship permit to operate a motor vehicle shall not be issued, to a person during the suspension or revocation period specified in Section 13353, 13353.1, or 13353.3.    (b) The privilege to operate a motor vehicle shall not be restored after a suspension or revocation pursuant to Section 13352, 13353, 13353.1, or 13353.2 until all applicable fees, including the fees prescribed in Section 14905, have been paid and the person gives proof of financial responsibility, as defined in Section 16430, to the department.   SEC. 4.  Section 23575 of the Vehicle Code is amended to read:    23575.  (a) (1) In addition to any other law, the court may require that a person convicted of a first offense violation of Section 23152 or 23153 install a certified ignition interlock device on any vehicle that the person owns or operates and prohibit that person from operating a motor vehicle unless that vehicle is equipped with a functioning, certified ignition interlock device. The court shall give heightened consideration to applying this sanction to a first offense violator with 0.15 percent or more, by weight, of alcohol in his or her blood at arrest, or with two or more prior moving traffic violations, or to persons who refused the chemical tests at arrest. If the court orders the ignition interlock device restriction, the term shall be determined by the court for a period not to exceed three years from the date of conviction. The court shall notify the Department of Motor Vehicles, as specified in subdivision (a) of Section 1803, of the terms of the restrictions in accordance with subdivision (a) of Section 1804. The Department of Motor Vehicles shall place the restriction in the person's records in the Department of Motor Vehicles.    (2) The court shall require a person convicted of a violation of Section 14601.2 to install an ignition interlock device on any vehicle that the person owns or operates and prohibit the person from operating a motor vehicle unless the vehicle is equipped with a functioning, certified ignition interlock device. The term of the restriction shall be determined by the court for a period not to exceed three years from the date of conviction. The court shall notify the Department of Motor Vehicles, as specified in subdivision (a) of Section 1803, of the terms of the restrictions in accordance with subdivision (a) of Section 1804. The Department of Motor Vehicles shall place the restriction in the person's records in the Department of Motor Vehicles.    (b) The court shall include on the abstract of conviction or violation submitted to the Department of Motor Vehicles under Section 1803 or 1816, the requirement and term for the use of a certified ignition interlock device. The records of the department shall reflect mandatory use of the device for the term ordered by the court.    (c) The court shall advise the person that installation of an ignition interlock device on a vehicle does not allow the person to drive without a valid driver's license.    (d) A person whose driving privilege is restricted by the court pursuant to this section shall arrange for each vehicle with an ignition interlock device to be serviced by the installer at least once every 60 days in order for the installer to recalibrate and monitor the operation of the device. The installer shall notify the court if the device is removed or indicates that the person has attempted to remove, bypass, or tamper with the device, or if the person fails three or more times to comply with a requirement for the maintenance or calibration of the ignition interlock device. There is no obligation for the installer to notify the court if the person has complied with all of the requirements of this article.    (e) The court shall monitor the installation and maintenance of an ignition interlock device restriction ordered pursuant to subdivision (a) or (  l  ). If a person fails to comply with the court order, the court shall give notice of the fact to the department pursuant to Section 40509.1.    (f) (1) If a person is convicted of a violation of Section 23152 or 23153 and the offense occurred within 10 years of one or more separate violations of Section 23152 or 23153 that resulted in a conviction, or if a person is convicted of a violation of Section 23103, as specified in Section 23103.5, and is suspended for one year under Section 13353.3, the person may apply to the Department of Motor Vehicles for a restricted driver's license pursuant to Section 13352 or 13353.3 that prohibits the person from operating a motor vehicle unless that vehicle is equipped with a functioning ignition interlock device, certified pursuant to Section 13386. The restriction shall remain in effect for at least the remaining period of the original suspension or revocation and until all reinstatement requirements in Section 13352 or 13353.3 are met.    (2) Pursuant to subdivision (g), the Department of Motor Vehicles shall immediately terminate the restriction issued pursuant to Section 13352 or 13353.3 and shall immediately suspend or revoke the privilege to operate a motor vehicle of a person who attempts to remove, bypass, or tamper with the device, who has the device removed prior to the termination date of the restriction, or who fails three or more times to comply with any requirement for the maintenance or calibration of the ignition interlock device ordered pursuant to Section 13352 or 13353.3. The privilege shall remain suspended or revoked for the remaining period of the originating suspension or revocation and until all reinstatement requirements in Section 13352 or 13353.3 are met.    (g) A person whose driving privilege is restricted by the Department of Motor Vehicles pursuant to Section 13352 or 13353.3 shall arrange for each vehicle with an ignition interlock device to be serviced by the installer at least once every 60 days in order for the installer to recalibrate the device and monitor the operation of the device. The installer shall notify the Department of Motor Vehicles if the device is removed or indicates that the person has attempted to remove, bypass, or tamper with the device, or if the person fails three or more times to comply with any requirement for the maintenance or calibration of the ignition interlock device. There is no obligation on the part of the installer to notify the department or the court if the person has complied with all of the requirements of this section.    (h) Nothing in this section permits a person to drive without a valid driver's license.    (i) The Department of Motor Vehicles shall include information along with the order of suspension or revocation for repeat offenders informing them that after a specified period of suspension or revocation has been completed, the person may either install an ignition interlock device on any vehicle that the person owns or operates or remain with a suspended or revoked driver's license.    (j) Pursuant to this section, an out-of-state resident who otherwise would qualify for an ignition interlock device restricted license in California shall be prohibited from operating a motor vehicle in California unless that vehicle is equipped with a functioning ignition interlock device. An ignition interlock device is not required to be installed on any vehicle owned by the defendant that is not driven in California.    (k) If a person has a medical problem that does not permit the person to breathe with sufficient strength to activate the device, then that person shall only have the suspension option.    (l) This section does not restrict a court from requiring installation of an ignition interlock device and prohibiting operation of a motor vehicle unless that vehicle is equipped with a functioning, certified ignition interlock device for a person to whom subdivision (a) or (b) does not apply. The term of the restriction shall be determined by the court for a period not to exceed three years from the date of conviction. The court shall notify the Department of Motor Vehicles, as specified in subdivision (a) of Section 1803, of the terms of the restrictions in accordance with subdivision (a) of Section 1804. The Department of Motor Vehicles shall place the restriction in the person's records in the Department of Motor Vehicles.    (m) For the purposes of this section, "vehicle" does not include a motorcycle until the state certifies an ignition interlock device that can be installed on a motorcycle. Any person subject to an ignition interlock device restriction shall not operate a motorcycle for the duration of the ignition interlock device restriction period.     (n) For the purposes of this section, "owned" means solely owned or owned in conjunction with another person or legal entity. For purposes of this section, "operates" includes operating a vehicle that is not owned by the person subject to this section.    (o) For the purposes of this section, "bypass" includes, but is not limited to, either of the following:    (1) A combination of failing or not taking the ignition interlock device rolling retest three consecutive times.    (2) An incidence of failing or not taking the ignition interlock device rolling retest, when not followed by an incidence of passing the ignition interlock rolling retest prior to turning off the vehicle's engine.